ocjamaat-biz legal issues

Legal Aspects of Starting & Running a Small BusinessA. ArastuPRICE LAW GROUP, APCManager – Consumer Protection Department

TOPICS

•Choosing a Legal Entity•Governmental Regulation, Licenses &

Permits•Tax Matters•Financing the Business•Employment Law•Real Estate•Developing Contracts and Forms

CHOOSING A LEGAL ENTITY THROUGH WHICH YOU WILL DO BUSINESS

▫THE 4 MAIN ALTERNATIVES: The Sole Proprietorship Partnership Corporation Limited Liability Company

SOLE PROPRIETORSHIP

▫Definition: Business for profit owned by one person who takes no steps to create a separate legal entity

SOLE PROPRIETORSHIP ▫Advantages:

The most simple form, especially if owner performs most job functions

Freedom from legal formalities Usually, others can't create obligations which bind

you Since a sole proprietor is not considered an

"employee" of a business, you will not have to pay unemployment taxes on your income from the business

You can move monies out of your business account, and withdraw assets from the business with very few legal limitations and without paying taxes

SOLE PROPRIETORSHIP▫Disadvantages:

No insulation from personal liability for obligations of the business

No avoidance of trade name filing if business done under another name

Sole proprietorship does not qualify for tax breaks accorded corporations for group-term life insurance, long-term disability insurance, and medical insurance

THE PARTNERSHIP▫Definition: The association of two or more persons

to carry on a business for profit as co-owners▫Partnership agreement not required, but desirable▫Each partner liable for all the obligations of the

partnership▫Partners share equally in profits and losses, unless

otherwise agreed▫Partnership is a tax-reporting entity. Must prepare

and file informational returns, even though income and losses are flowed through to the individual partners

THE PARTNERSHIP▫Advantages:

Expanded sharing of management responsibility, i.e., "two heads are better than one"

Minimal legal formalities. NOTE: Trade name certificate must be filed if you do business under any name other than names of all partners

Limited duration: No formal action required in order to "kill it off"

THE PARTNERSHIP▫Disadvantages:

Potential for deadlock if partners don't agree on management of business

Each partner is personally liable for partnership obligations incurred by other partners

Partnership interests are not freely transferable by a partner

Unless the partnership agreement otherwise provides, the death or bankruptcy of a partner, or the unilateral decision of a partner to withdraw from the partnership, will result in the dissolution of the partnership

THE CORPORATION

▫The Corporation is a separate legal person, a separate legal entity, that comes into existence when a Certificate of incorporation is filed with the Division of Commercial Recording.

THE CORPORATION

▫ Advantages: Limited liability of shareholders. This is one of the most important

"gifts" in our common law. Especially important in view of our society's litigiousness

Centralized management in the corporation's board of directors Continuous existence. The corporation does not cease to exist upon

the death or bankruptcy of a shareholder, or the decision of a shareholder to withdraw from the business

Acceptability of business format makes it easier to raise equity financing (eg. sale of shares to investors), and debt financing (eg. bank loans or other loans)

Use of corporate stock to "incentivize" key employees Unless restricted by corporate documents, shares of stock are freely

transferable As noted above, corporations receive favorable tax treatment for

certain fringe benefit plans, including medical insurance, disability insurance, and group-term life insurance

THE CORPORATION

▫Disadvantages: Expense of incorporation and recurring expense of annual

franchise or corporate income taxes Need to observe corporate formalities, including annual

meetings of shareholders, regular meetings of directors, maintenance of corporate minutes and other corporate records, and filing of annual reports with New Jersey Secretary of State

Consideration of federal and state securities law questions in issuance of capital stock

If business conducted in other states, corporation may need to apply for a certificate of authority in such other states

Duplication in licensing, i.e., both individual and corporation may be required to obtain licenses

THE CORPORATION▫ Tax Considerations:

For tax purposes, corporations are either regular corporations, referred to as "C" corporations, or "S" corporations. In order to qualify for "S" corporation treatment, you must meet strict requirements and file an "S" election on Form 2553

"C" corporations are subject to two levels of taxes: once at the corporate level, and again when the corporation makes distributions to its shareholders

"S" corporations escape double taxation since they operate as pass-through entities. The corporation generally pays no tax on its income; the shareholders are taxed at their individual rates on the corporation's income. The "S" corporation combines the best features of the corporation (limited liability) and the partnership (one level of taxation)

Until 1993, "S" corporations were a very popular choice for the new business entity. However, the Clinton Deficit Reduction tax package passed in 1993 has made the "S" corporation less attractive, since the top individual tax rate was raised to 39.6%, up from the previous high of 31%. The top tax rate for most corporations stayed at 34%. This leads to a situation where "S" corporation shareholders may pay individual income tax at a higher rate than the "C" corporation would pay. "S" corporations no longer have a distinct advantage over "C" corporations

However, the "S" election still deserves careful consideration and consultation with the business owner's accountant. "S" corporation status may be very beneficial if it's expected that the business will incur losses in the early years or if the owner is expected to be in the lower individual tax brackets for a while

THE LIMITED LIABILITY COMPANY

▫Definition: A limited liability company ("LLC") is a relatively new type of business entity that combines features of a corporation and a partnership


Comparison of the LLC with the Partnership. LLCs and partnerships are both taxed in the

same way -- as pass-through entities Partners in a general partnership are

personally liable for the debts and obligations of the partnership. Members of an LLC are not personally liable for debts and obligations of the LLC. The most they can lose is their investment in the LLC


▫ Comparison of the LLC with a C corporation. C corporation shareholders are taxed twice -- once at the corporate level and a second time at the individual level

as shareholders Shareholders in a corporation and members in an LLC both enjoy insulation from personal liability for debts of the

entity In addition to limited liability of shareholders, corporations have 3 other attributes:

"Continuity of life", i.e., corporations live forever and don't terminate if a shareholder sells out or dies, etc "Free transferability of shares", i.e., shareholders are free to transfer their shares to others, unless there is an agreement to the

contrary; an "Centralized management", i.e., as a technical matter, the business of the corporation is managed, not by the shareholders, but by

a board of directors.

NOTE: Before January 1, 1997 there was a risk that an LLC that had these corporation attributes (continuity of life, free transferability of shares and centralized management) would be taxed as a corporation and not as a partnership. Since most small business owners form the LLC with the expectation that it will be taxed as a partnership, and not as a corporation, this was an undesirable situation requiring a great deal of care in the formation of the LLC.

Now, with the IRS adoption of the so-called "check-the-box" regulations, this risk has been removed from the LLC. Effective January 1, 1997, LLCs will automatically be given pass-through tax treatment, unless they elect to be taxed as corporations

Corporations generally are required to be managed by a board of directors which, in turn, appoints officers to run the day-to-day affairs of the business. These rules do not apply to LLCs. LLCs are not required to have directors or officers. The management of the business can be done by the LLC members, or the members may appoint managers

A corporation must observe certain formalities in terms of shareholder and director meetings, maintenance of corporate minutes, and filing of annual reports. Failure to observe these formalities can lead to "piercing of the corporate veil". The LLC has no such corporate formalities

In the C corporation, there is often a genuine concern about the ability of the IRS to claim that shareholder-officers of the corporation have received "unreasonable compensation". The consequence of such a determination by the IRS is that the "unreasonable" portion would not be deductible by the corporation, and would, therefore be subject to double taxation. Since the LLC is not subject to two levels of tax, unreasonable compensation concerns are eliminated


▫ Comparison of LLC with S corporation. Both LLCs and S corporations offer pass-through taxation at the federal level Both LLC and S corporations afford members/ shareholders insulation

against liability for the debts and obligations of the entity However, S corporations are subject to a number of tax rules that do not

apply to LLCs: S corporations may issue only one class of common stock, and no preferred stock. LLCs

can have flexible capital structures S corporations can not have more than 75 shareholders. LLCs may have an unlimited

number of members Before January 1, 1997, S Corporations could have corporations, partnerships or non-

U.S. persons as shareholders. Effective January 1, 1997, S Corporations are permitted to be 100% shareholders of other S corporations. However, a Corporation cannot own stock in an S corporation, In contrast, LLCs may have U.S. citizens or foreign persons, and U.S. corporations and foreign corporations as members

iv. S corporations are permitted to own 80% or more of the stock of a Corporation, and 100% of the stocks of an S Corporation. LLCs can have unlimited numbers of subsidiaries

S corporations must properly complete and timely file various tax forms. LLCs have no such filing requirements


▫ How do you know if an LLC is right for your business? The LLC provides the same limitation on personal liability and pass-through tax

treatment as an S corporation, without the need for various S corporation tax filings

Avoidance of the need for a board of directors. All members of an LLC can participate directly in the management of the company, without the need for a board of directors

Avoidance of the need for a shareholders agreement. In order to prevent free transferability of shares of stock of a corporation, you need a shareholders agreement. By law, however, the interest of a member in an LLC cannot be transferred without the consent of all the other members. This alleviates the need for a shareholders agreement. However, every LLC requires an "Operating Agreement". The Operating Agreement takes the place of corporate by-laws and organizational resolutions, and, in most cases, will cover many of the same subjects as a shareholder agreement

The combination of limited liability, pass-through taxation, relaxed rules for non-U.S. investors, and flexibility in capital structures will make the LLC the vehicle of choice for situations involving: joint ventures non-U.S. investors; an passive investors

THE LEGAL ENTITY YOU CHOSE TO DO BUSINESS AS MATTERS

▫THE 4 MAIN ALTERNATIVES: The sole proprietorship Partnership Corporation

S Corporation C Corporation

Limited Liability Company▫OTHER ALTERNATIVES

Limited Liability Partnership

TOPICS



STATE & LOCAL REGULATIONS▫ There are multiple layers of state and local regulations that the small business

person must contend with: State licensing of certain businesses, such as warehouses, nursing homes,

secondary mortgage lenders, pharmacies and employment agencies. State licensing of an individual's practice of certain trades and professions,

including architects, professional engineers, pharmacists, plumbers, morticians, real estate brokers, psychologists and nurses.

Municipal licensing of certain businesses, such as automobile garages, movie theaters and other places of public entertainment, lumber yards, hotels and motels.

Local board of health permits for certain businesses, such as hotels and restaurants.

If the business will be involved in retail sales or in furnishing certain services, then you will be required to collect and remit sales taxes. An application for registration on Form REG-1 must be prepared and filed with the N.J. Division of Taxation.

▫ The N.J. Department of Commerce and Economic Development is a valuable resource to the small business person. The license and certification hotline (800-533-0186) maintains a computer database on New Jersey's licensing requirements for businesses and professions, and can steer the business person to the appropriate state agency.

FEDERAL REGULATION▫In addition to state and local licenses and

permits, some small businesses also require federal licenses or permits, including the following: Radio or television broadcasting (Federal

Communications Commission); Investment Advisory Services (Securities and

Exchange Commission); Preparation of meats (Food and Drug

Administration); Providing common carrier services (Interstate

Commerce Commission);

FEDERAL REGULATIONS▫ In addition to state and local regulations, and federal

license requirements, there are numerous federal regulations affecting the operation of small businesses. (The following is a list of some of the federal regulations, and is not intended to be comprehensive): Employment regulations, including equal opportunity and

antidiscrimination. Consumer credit regulations. Occupational Safety and Health Administration (OSHA)

regulations. Federal Trade Commission regulations concerning false

advertising. Antitrust regulations. Immigration regulations.

TOPICS



TAX MATTERS

Every business in New Jersey is required to register with the New Jersey Division of Taxation. You can obtain the New Jersey Tax Registration Packet (Form REG-P) by contacting the Division's Taxpayer Information Services at (609) 292-6400 or (800) 323-4400.

TAX MATTERS▫Although not complete, a small business should be

generally aware its obligation to pay the following taxes: Federal Income Tax; State Gross Income Tax or corporation business

tax (also known as "franchise" tax); Federal Unemployment Tax; State Unemployment Compensation Contributions; State Disability Benefits Contributions; State Sales and Use Taxes; Real Property Tax; and Miscellaneous Other Taxes (eg. Litter Taxes)

THE IMPORTANCE OF AN ACCOUNTANT

▫The small business needs to retain the services of a qualified accountant who, in addition to preparing and filing tax returns on behalf of the business, can also help the small business owner in a number of other ways, including the following: Establishing bookkeeping records and procedures Preparation of annual or more frequent financial

statements, including balance sheets, statements of income, and statements of changes in financial position; an

General business consultation and advice.

TOPICS



FINANCING THE BUSINESS▫1. CAPITAL CONTRIBUTIONS BY OWNERS

By far and away, the most frequent method of financing the start-up of a new business is by the capital contributions of its owners. The seed capital for most new businesses is provided by the life savings of the owners and funds provided by relatives and friends.

The assets contributed include cash, tangible assets such as furniture, fixtures, machinery and equipment, and intangible assets such as patents, trademarks and inventions.

If the business is structured as a corporation, some of the contributions will have to be classified as equity investment (i.e., payment for stock) and the balance may be classified as debt (i.e., loans that may be repaid to the owner). The allocation or split between debt and equity should be worked out in consultation with the accountant and attorney so that applicable tax and legal rules are complied with.

FINANCING THE BUSINESS▫ 2. FINANCING BY THIRD PARTIES

"Sweat Equity“: Occasionally, the owners are able to step outside their circle of family and friends to tap the resources of outside investors, who may be individuals or institutions.

"VCs and Angels“: Historically, venture capitalists (affectionately referred to as "VCs") provided healthy amounts of funding to start-ups and small businesses. This has changed in the last 5 years or so, as the VCs invest in larger deals and more mature companies. However, to a certain extent, the vacuum has been filled by smaller investors, sometimes called "angels" who like to invest in these small risky deals.

Corporate Partners: Some of the slack in availability of investment capital has been taken up by so-called "corporate partners", which are established companies (usually, but not always, larger companies) that are interested in making investments in start-up and small ventures. The "corporate partner" is often driven by a different motivation than the venture capitalist, who is usually motivated strictly by return on investment. The corporate partner usually seeks benefits in other ways such as by assignment of inventions, licensing rights, manufacturing rights or marketing rights.

Customers and Suppliers: A little-used but often successful financing source for the small business owner is a major customer or major supplier. The financing might consist of cash for debt or equity, but more often will take the form of extended terms (in the case of the supplier) or prepayments (in the case of the customer) or some combination of the foregoing.

FINANCING THE BUSINESS▫3. COMMERCIAL LOANS

Bank Loans.Generally, banks are poor sources of funds for start-up companies. Banks like to make commercial loans on a "secured" basis, taking liens in real estate, machinery and equipment, inventory, accounts receivable and other assets of the borrower. The problem is that most start-up companies don't have the asset base to support a commercial loan.

Alternatives.If the business owner has equity in a residence or other real estate, then the real estate might be sufficient collateral to support a loan to the individual or to the company with the personal guarantee of the owner. Explore all avenues. In one case handled by speaker, the business owner's lottery prize was utilized as a major component of the collateral package.

FINANCING THE BUSINESS▫4. U. S. SMALL BUSINESS ADMINISTRATION

(SBA) LOANS Due to funding cutbacks the SBA will consider

applications for direct lending only to Vietnam era veterans; disabled veterans with a rated disability of at least 30%; handicapped individuals who qualify under the SBA's handicapped loan program; business located in high - unemployment areas, or owned by low income individuals.

Most SBA lending is now provided under the SBA's Loan Guaranty program, whereby the SBA guarantees up to $750,000 of a loan made by a lending institution.

FINANCING THE BUSINESS▫5. N. J. ECONOMIC DEVELOPMENT

AUTHORITY (EDA) LOANS The N.J. Economic Development Authority

(EDA) helps businesses in New Jersey by providing loans, loan guarantees, and both taxable and tax-free bonds.

For more information about the EDA's "Statewide Loan Pool for Businesses", you may call or write: New Jersey Economic Development Authority, Capital Place One, 200 South Warren Street, CN 990, Trenton, New Jersey 08625-0990, (609) 292-1800.

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HIRING EMPLOYEES -- THE EMPLOYMENT APPLICATION

• The small business owner should have an employment application that has been reviewed by counsel. ▫ Be on the look-out for illegal questions. By regulation in California, employers may not ask any

questions regarding the job candidate's race, creed, color, national origin, ancestry, age, marital status, sex or liability for service in the U.S. Armed Forces unless the requested information legitimately relates to the fulfillment of a "bona fide occupational qualification".

▫ There are many questions that should not be asked, in conversation or on the application form, eg., what is the applicant's native language. Watch out for use of photo before hiring.

▫ The use of an employment-at-will disclaimer on the application is recommended such as the following:"In consideration of my employment, I agree to conform to the rules and regulations of XYZ Company, and my employment and compensation can be terminated, with or without cause and with or without notice, at any time, at the option of either the Company or myself. I understand that no manager or representative of the Company, other than the President or Vice-President of XYZ Company, has any authority to enter into any agreement for employment for any specified period of time, or to make any agreement contrary to the foregoing."

▫ Include on the application an agreement not to reveal trade secrets or confidential information; also, a statement about false or fraudulent information.

▫ If any pre-employment investigation of an applicant is made, the Federal Fair Credit and Reporting Act requires a disclosure statement such as the following: "We intend to request a background investigation regarding your general reputation, education, work experience, finances and community standing. In accordance with the Fair Credit and Reporting Act, you have a right to request in writing a disclosure of the nature and scope of the information requested. Please sign and indicate your acceptance of these terms."

HIRING EMPLOYEES -- INTERVIEWING DOS & DON’TS

▫ The interview process can be a legal minefield for your company.▫ Some of the things an interviewer may properly do include:

Telling prospective employees that the company is a nice place to work, treats employees well, is forward-thinking, and is concerned about employees.

Engaging in fair commentary about the company's treatment of employees.

Giving information about performance appraisals and salary reviews. Giving information about the company's fringe benefits.

▫ Some of the statements that the interviewer should avoid include: Inducing individuals away from other employment with assurances or

promises such as: "you'll have a permanent job here," or "you'll be able to work here the rest of your life," etc.

Promising or implying that employment will not be terminated except for "good cause" or words of similar effect.

HIRING EMPLOYEES -- EMPLOYMENT AGREEMENTS

▫ The employment agreement has undergone major change in the last 10 to 15 years. Whereas historically it was used primarily with top executive officers, now it is used with employees all up and down the line.

▫ Employees became accustomed to thinking of the employment agreement as a pro-employee document. Although the employment agreement does offer significant benefits to the employee, it also carries with it major drawbacks.

▫ The advantages of the employment agreement to the employee can include: job security, guaranteed compensation, and fringe benefits.

▫ The employer, however, can load the agreement with provisions that benefit the company, at the expense of the employee, including: acknowledgement of the employee's employment-at-will status; restrictive covenants, including noncompetition, nonsolicitation and nondisclosure

agreements; and assignment of inventions provisions.

▫ Even in a situation where the owners are the sole employees, an employment agreement makes sense for tax reasons: the agreement validates the company's payments of profits to the owners, and blunts

the ability of the IRS to claim that the owners' compensation is really disguised dividends which should be subject to double tax.

Another benefit of the employment agreement in the small company setting is to avoid disputes between the owners as to sharing of profits.

EMPLOYMENT LAW -- OTHER THINGS TO CONSIDER

▫Employee Benefits Pension Plans, Profit-sharing, Deferred

Compensation, Vacation/Sick Pay, Severance Pay, etc.

▫The Occupational Safety And Health Act (OSHA) Requires every employer to provide a

workplace free of hazards that are likely to cause serious physical injury or death to employees.

▫State and Federal Child Labor Laws▫State and Federal Minimum Wage Laws

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REAL ESTATE – SELECTING A SITE FOR YOUR BUSINESS

▫As a business person, you will be faced with a number of different considerations in selecting a physical location for your business, including market considerations regarding the company's goods or services; the local labor pool; transportation; and local purchase or rental costs.

REAL ESTATE – ZONING AND OTHER RESTRICTIONS

▫Check local zoning laws to make sure that you may operate your business in the chosen location. An attorney can also assist you in investigating local ordinances that affect signage, exterior lighting, permitted hours of operation and other matters affecting your business.

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DEVELOPING CONTRACTS AND FORMS FOR USE IN YOUR BUSINESS

▫No Two Businesses Are Alike. Each business has its own needs when it comes to contracts and forms. Some businesses have extensive needs for contracts and forms and others require only one or two forms, but just about every business has need for some contracts or forms.


▫Customer Contracts. It is a good idea to analyze your method of dealing with customers in order to determine if your business requires a contract or form for use with customers. Whether you sell goods or services it is advisable to have a customer contract or form in place so that you can: clarify the important business terms, including price,

payment terms and other terms and conditions of sale; have a basis to pursue collection if the customer does not

pay; avoid disputes; and put in terms and conditions that are favorable to you so

that, if you can't avoid a dispute, at least the contract governing your dispute will be in your favor.


▫Forms for Use With Suppliers. If you purchase goods or services from a vendor or supplier, then consideration should be given to the development of a form setting forth the terms and conditions under which you will buy. If you are a purchaser of goods, you should have a purchase order form. Many small to mid-sized businesses overlook the need for a purchase order form with terms and conditions on the reverse side.


▫Employment Contracts and Forms. In the employment law section of the workshop, we identified a number of employment-related documents that every employer should have in place: the employment application; performance appraisal form; employment agreements; a restrictive covenant agreement containing one or

more of the following: noncompetition agreement; nonsolicitation agreement; and nondisclosure agreement (also known as a "secrecy agreement" or "confidentiality agreement").


▫ Independent Contractors and Consultants. Many businesses have agents or representatives who are not

employees, but independent contractors. An example: a real estate sales person for a real estate brokerage business. Independent contractor status offers advantages for the business, if you qualify. An independent contractor agreement, by itself, will not suffice, but if you do qualify under the complicated legal and tax rules, you should have a written independent contractor agreement in place to support your claim of independent contractor status.

If you work with consultants, for example, a software programmer who is hired to develop custom software, you should also have a written contract in place. The U.S. Supreme Court decision in Community for Creative Non-violence v. Reed highlights just one of the reasons why.

If you have contractors who come onto your premises, eg. a building contractor to handle a plant renovation, you should have forms in place whereby the contractor waives all rights to sue you for personal injury to his workers.


▫Special Situations. The types of contracts and forms listed above are by no means comprehensive. There are numerous special situations that come up in your day-to-day business which also require contracts and forms. Whenever you encounter such a special situation, you should consult with an experienced business lawyer to counsel and assist you.

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